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February 23, 2013

Yankees: We Are Evil

A panel of trademark judges in Washington, D.C., earlier this month denied a request from a private entrepreneur, known as Evil Enterprises, Inc., to register the trademark for the phrase "Baseballs Evil Empire."

Evil Enterprises wanted the exclusive right to market merchandise using that phrase, which was coined in regard to the Yankees by Larry Lucchino, the president and chief executive of the Boston Red Sox, back in 2002. ...

But the Yankees objected, arguing that they had the rights to the phrase — at least when used in connection with baseball.

19 comments:

I'd have thought the wraith of Ronald Reagan would have first dibs on the phrase....

It's so weird that Reagan's frightening comic-book mentality and his 'Evil Empire' phrase encapsulating that mentality should have devolved to the even more farcical level where people debate who gets to use the term on a tee shirt.

Iglesias up with loaded, no outs, I see "in play (runs)," then I see only a man on third, and was all excited about the three-run triple. Nope. Double play. Still, 2-0 us in the 2nd. Yanks on MLBN. Youk with some warning track power in the first.

Here is a more complete explanation (without the snarkiness of the Daily News...). It's funny that the NYY admit that Evil Empire refers unquestionably to their organization. It's a reasonable trademark decision because the Yankees basically established the Evil Empire = Yankees, so people will believe that they are the source of the items sold with that logo on it. I assume their real motive was to block the sales of these items that disparage them in some way, but they couldn't prove disparagement because they had admitted that they had themselves embraced the nickname as referring to them.

Here is a link to the full opinion of the Trademark Trial and Appeal Board.

FWIW, there is a similar case involving the Red Sox opposing the registration of the mark "Sex Rod" written in the well-known Sox font. The Sox argued successfully that that mark was scandalous and disparaging, but not that it was likely to confuse consumers into thinking the Sox organization was selling the t-shirts. The Board there said that the public would not be likely to believe that the Red Sox would sell something that vulgar. Nevertheless, the Board denied registration on the other two grounds.

One other note: simply because a company is denied registration does not mean they cannot sell the items with that mark. However, they might expose themselves to a separate suit for trademark infringement or for slander or some other claim once they do.

Just saw Zen's question. For trademark purposes, it does not matter who invented the mark---what matters is who uses it first to identify the source of their goods.

I actually think that the problem here was the failure of the applicant to rebut the Yankee's evidence that EE = Yankees. I have to believe that, as in the Red Sox case, the public wouldn't believe the Yankees themselves would make t-shirts referring to themselves as the Evil Empire. Maybe this was just a case of bad lawyering.

The firm I used to work at (since deceased) took on The Fart Face matter -- listed as such in the firm's records with a straight face. This was a bunch who made products mocking The North Face clothing line. Sounds very similar; not sure about the outcome.

One other note: simply because a company is denied registration does not mean they cannot sell the items with that mark.

I was going to say this (albeit more awkwardly worded!) earlier. Think of all the t-shirts and crap out there that are infringing on trademarks. I know some companies zealously pursue infringement, but how many have the time and resources. And in the digital realm, it's next to impossible.

Re punctuation error, the problem is usually too many apostrophes, not too few! Apostrophe's, that i's.

If the Yankees decided to sue EE for infringement, they'd face a few problems. For one thing, they don't have a trademark registration themselves nor do they assert that they have used the mark itself, only that it has become associated with them by public use. They'd have to present better evidence of likelihood of confusion to get injunctive relief or damages than they needed to present to oppose the registration. But hey, they ARE the evil empire and clearly have the resources to pursue litigation, so you never know!